Age Discrimination in the Workplace

It is generally unlawful for an employer to discriminate on the grounds of age – ie to treat individuals of any age less favorably than others. People may be discriminated against because of their age. Young people may be belittled, passed over for jobs or paid poor wages just because they are young, and older people may be denied jobs or refused work because an employer believes they are too old.

Direct discrimination: treating someone less favourably because of their actual or perceived age, or because of the age of someone with whom they associate. This treatment can only be justified if it is a proportionate means of achieving a legitimate aim which means it must be appropriate and necessary, (economic factors such as business needs and efficiency may be legitimate aims).

Indirect discrimination: can occur where there is a policy, practice or procedure which applies to all workers, but particularly disadvantages people of a particular age. For example, a requirement for job applicants to have worked in a particular industry for ten years may disadvantage younger people. Indirect discrimination can only be justified if it is a proportionate means of achieving a legitimate aim.

Harassment: when unwanted conduct related to age has the purpose or effect of violating an individual’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for that individual.

Victimisation: unfair treatment of an employee who has made or supported a complaint about age discrimination.

Ireland was one of the first EU Member States to prohibit discrimination on the grounds of age. The primary source of legislation in Ireland on the subject of age discrimination are the Employment Equality Acts 1998 to 2008 (”the Acts”). The main body of the legislation is the Employment Equality Act 1998. The Equality Act 2004 was implemented to comply with EU Directive 2000/78 establishing a framework for equal treatment. The Acts prohibit discrimination (direct and indirect) on nine grounds, to include age. For the avoidance of doubt, these are national laws; there are no local laws in existence.

Harassment is defined as any form of unwanted conduct related to any of the discriminatory grounds (other than gender) which has the purpose or effect of violating a person’s dignity and creating an intimidating, hostile, degrading, humiliating or offensive environment for the person. The unwanted conduct may consist of acts, requests, spoken words, gestures or the production, display or circulation of written words, pictures or other material.

The most common cases appear to relate to alleged discrimination at the recruitment stage, most particularly in the course of the interview process, and in the area of promotion where it may be perceived that older workers may lose out.

Furthermore, an issue which often arises (and upon which we regularly advise) is the alleged redundancy of an employee who has lengthy service with his/her employer and whom the employer wishes to replace with a younger recruit.

An interesting case which relates to the issue of retirement ages is that of Leahy .v. Limerick County Council [DEC/E2003/038]. In this case, the Complainant alleged that he had been discriminated against on the grounds of age contrary to Section 6.2 (F) of the Employment Equality Act 1998 as the employer had operated a mandatory retirement age of 55 years for Fire Fighters. The Complainant argued that Fire Officers had not been required to retire until they reached the age of 65 years and also that some Fire Fighters had not been required to retire at 55 years of age. The Complainant further argued that Fire Fighters employed in other local authorities did not have to retire at age 55 years either.

The Respondent employers submitted a document, which the Complainant had accepted, which clearly stated 55 years as the retirement age for the post. The Respondent further argued that Fire Fighters who are over the age of 55 years were exceptional and that the position of Fire Officer could be differentiated from that of Fire Fighter on the basis that it was distinct and less physically demanding than the position of Fire Fighter. The Equality Officer held that the Complainant had failed to establish a prima facie case of age discrimination and therefore held that the application of different retirement ages by the Respondent employers came within the parameters of Section 34.4 of the Employment Equality Act, 1998.

The first age discrimination claim that was upheld under Irish Law was the case of Equality Authority v. Ryanair [2001 E.L.R 107]. Section 10(1) of the Employment Equality Act 1998 provides that a person shall not publish or cause to be published or display an advertisement which relates to employment and which

“(a) indicates an intention to discriminate or (b) might reasonably be understood as indicating such an intention”. In this case, the advertisement in question stated “we need a young and dynamic professional…” and that the ideal candidate would be “young and dynamic…”

The Equality Officer found that the use of the word “young” clearly indicated or might reasonably be understood as indicating an intention to exclude applicants who are not young. It was therefore discriminatory and Ryanair was ordered to pay a sum of €10,157.97 by way of compensation and ordered to take a specific course of action, to include a review of its equal opportunities policies, equality proofing of recruitment and selection guidelines and the publication of a statement of equal prominence to the offending advertisement.

It is essential for a company to comprehend the fact that any sort of discrimination in the workplace is unlawful and costly. It is the key role of an employer to manage the workplace diversity. Considering diversity helps an organization to create an environment that is diversity oriented and have a workforce that is innovative and productive. In order to safeguard and protect the employees from being discriminated at work the UK government has taken protective measures and is ensuring equality in the workplace and have incorporated a equality act law in 2010 to safeguard and protect the employees.

If companies work towards an age positive future, any kind of discrimination will not be entertained in the Ireland, and also it proves to be socially responsible. Taking a few measures like no redundancies for older people, training facilities for older people, etc. could prove to be lucrative and beneficial. Employment based on age criterion is not legal. The anti-age discrimination law covers a wide range of workplace situations and applies to certain circumstances only which were clarified in the laws above.

If you have a query in relation to age discrimination in the workplace or age equality in the workplace, please contact us on 01-5313800 or info@colemanlegalpartners.ie for further information.

*In contentious business, a solicitor may not calculate fees or other charges as a percentage or proportion of any award or settlement. This statement is made in compliance with RE.8 of SI 518 of 2002.

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